9 N.H. 454 | Superior Court of New Hampshire | 1838
It appears, from the case, that the defend
Whether the quantity used had been increased within the period of ten years prior to 1819, or whether the owners of the mills on the north increased the quantity used by them, after that time, and before 1828, does not appear, nor does it seem to be material to this case, it does appear that they continued the use of the water without any interruption up to 1828, or about that time, when the plaintiff built his fulling mill ; and by the rule before adverted to, their use of it, for the twenty years next preceding that time, furnished evi
This being the nature of the rights of the defendants, as derived from the owners of the mills on the north side of the river, at the time when the plaintiff complains that they drew off the water to his injury ; it appears fhat, being desirous of using the water at their factories below, instead of using it in the operation of their mills at Waldron’s falls, they hoisted their gates and permitted the water to flow through them, without any use of it at that place. There is nothing in this injurious to the plaintiff, unless they in this way drew more water than they had the right to use. It is settled that where a right exists to use a certain quantity of water, a change in the mode and objects of the use, without increasing the quantity, is no violation of the right. 2 N. H. R. 255, Bullen vs. Runnels ; 6 N, H. R. 22, Johnson vs. Rand. The plaintiff would have had no ground of complaint had the defendants erected their factories at Waldron’s falls, and applied the water to them, to the extent that it had been used there ; and his rights are no more prejudiced by the defendants’opening their gates, and using the water three miles below, provided they use no greater quantity, than they would be by a change of the use at that place. It is immaterial to the plaintiff at what spot the defendants apply the water to a wheel, or what machinery that wheel turns, so long as they do not exceed their rights in the quantity they use. 1 Barn. 6f Aid. 261, Saunders vs. Newman; 4 Mason'’ sR. 404, Tyler vs. Wilkinson. The instructions to the jury on this branch of the case seem to be fully warranted by the cases above cited.
The next question arises upon the instructions to the jury, that the defendants might draw through their gates, in dry seasons, even a larger quantity of water than they had been accustomed to draw prior to 1828, if the excess was furnish
On the case before us, the plaintiff has no right to have this water pass Waldron’s falls. The defendants may pen it back, and permit it to evaporate without suffering it to come into the Cocheco river. It is derived from a reservoir provided by them for their own purposes, and the plaintiff can maintain no action for depriving him of the use of it in that mode. On what principle, then, is his right infringed, if they let the water into the river, hoist their gates at Wal-dron’s falls and permit it to pass by ? on what ground are they obliged to pen it up there, for the plaintiff’s benefit ?
Suppose, instead of a mill, the plaintiff was the owner of a meadow, lying upon the Cocheco, above Waldron’s falls, which in ordinary stages of water, in the summer, prior to the construction of the reservoir at Bow pond, had not been affected by the water ; and that if the defendants were now to let the water out of the reservoir, in the summer, and pen it up by the dam at Waldron’s falls until they had occasion to use it for their works there, the plaintiff’ ⅛ meadow would ba overflowed thereby and injured. He would most clearly have a right to complain of that, and his complaint would be, in
These suppositions are made merely for the purpose of testing the grounds upon which the plaintiff’s claim rests, so far as this surplus water is concerned ; and we are of opinion that the plaintiff wholly fails to establish a right to the use of it, and of course to show that the act of the defendants, in hoisting their gates and letting it pass, is an injury to him.
If the defendants have transcended their rights by penning the water back at Bow pond, and then letting it off at a dif
We have considered this case as if Watson & Son, when they |pfnveyed, in 1819, could grant the right to use, at the southerly end of the dam, all the water ordinarily running in the stream, beyond the quantity which the defendants, and those under whom they claim, had been accustomed to use on the northerly side. Whether, however, Watson & Son could convey such a right? or whether the right to the use of such water would belong equally to the owners on both sides of the river ? or whether the long continuance of the mills on the northerly side, without any use at the southerly end of the dam, is to be regarded as evidence of a right to erect a dam and use all the water of the river at pleasure upon the north side ? are questions which we have not considered, and upon which we do not intend to intimate an opinion.
Judgment for the defendants.